Table of Contents

Fundamental rights

Background–

Nehru report

Demand of Fundamental rights in India was initiated by Motilal Nehru in 1928 under Nehru committee report.

Karachi resolution-

In 1931 there was congress session in Karachi and there was resolution to provide some basis and fundamental rights to the people of India.

Drafting committee-

The fundamental rights were included in the First Draft Constitution in February 1948, the Second Draft Constitution in 17 October 1948 and final Third Draft Constitution in 26 November 1949, prepared by the Drafting Committee.

Finally they were added in Part III of the Indian Constitution under Articles 12 to 35.

The fundamental rights were included in the constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity.

We have borrowed the concept of fundamental rights form US constitution.

In the original Constitution 7 Fundamental Rights are mentioned-

Right to Equality (14-18)
Right to Freedom (19-22)
Right Against Exploitation (23-24)
Right to Freedom of Religion (25-28)
Cultural and Educational Rights (29-30)
Right to property (31)
Right to Constitutional Remedies (32).

44th Amendment Act of the Constitution in the year 1976-

This constitutional amendment act have removed Right to property under article 31 and now it is a Legal Right under Art. 300-A.

The 86th Amendment Act-

Under this amendment the Right to Education has been included in the list of Fundamental Rights as part of the Right to Freedom by adding Article 21(A).

Features of Fundamental rights-

They are not absolute and state can restrict some of these rights on the basis of reasonable restrictions.

Majority of them are available against the state and few of them are available against the private individuals.

Some of them are available to the citizens of India only and some are available to all I.e. citizens and non citizens.

Some of them are Negative in nature I.e. puts some restriction on state or individual and some of them are positive in nature I.e. they provides privileges to the individuals.

They are Justiciable ,which means that they are legally enforceable by Supreme court and High court in case of their violations.

Except Fundamental rights guaranteed under Articles 20 and 21 remaining Fundamental rights can be suspended during operation of National Emergency.

Article 19 can be suspended only when emergency is declared on the grounds of war or external aggression and not on the grounds of armed rebellion.

Article 12

This article is related to the definition state.

“the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Which means that Local authorities ,statutory authorities, bodies like LIC, ONGC, SAIL and Private body working an instrument of State works falls under the defination of state

Article 13-

It states that all Laws inconsistent with or in derogation of the fundamental rights shall be void.

The Supreme court and High court by using writ jurisdiction under Article 32 and 226 respectively can declare a law unconstitutional and invalid on the grounds of contravention of any of the fundamental Rights.

Here Meaning of Law is –

Laws enacted by Parliament & State Legislatures.

Ordinances issued by President and governor.

Statutory instruments like order, bye-law, rule, regulation, notification Custom or Usage having the force of law

Does Constitutional Amendment falls under the definition of law ?

Yes,Constitutional amendments falls under the definition of the law.

It was specifically stated by Supreme court of India in Keshavananda Bharathi case-1973

Right to Equality -Article 14 to 18

Article 14- Equality before law-

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India

What is the meaning of equality before law and equal protection by law ?

Equality before law-

It is a British concept and states that no person is above the law and all are equal before law.

It is a negative concept as it puts certain restrictions.

It includes 3 things-

Absence of arbitrary power.

Equal subjection of all citizens.

Primacy of individual rights(not applicable in India).

Equal protection of Law-

It means that equal treatment shall be given under equal circumstances.

All privileges and liabilities shall be given equally to the individuals.

It is a positive concept and borrowed from US constitution.

Exceptions to Equality-

The President and The Governor-

President of India & Governors not answerable to court performing duties No criminal proceedings initiated/continued during term of office.

No arrest/imprisonment during term of office.

Civil proceedings shall be instituted only 2 months after issuing notice to them.

Previsions of right of equality does not apply to Article 31c.

Foreign Ambassadors/diplomats & UNO agencies are immune from criminal & civil proceedings.

No member of Parliament (article 105) and State Legislature (article 194) shall be liable to any court proceedings in respect of anything said or any vote given by him in Parliament or any committee.

Article 15 -Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.

(3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

(5)Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

From above article it is clear that –

No citizen shall be subjected to any disability, liability, restriction or condition on grounds only of religion, race, caste, sex or place of birth with regard to public spaces- state/private individuals.

There are exceptions to this article-

Exceptions to non-discrimination –

Women & Children .

Socially & educationally backward classes citizens.

SCs & STs – including private education {except minority} .

Non-creamy OBCs.

The State can reserve seats for these categories in educational institutions, grant fee concessions or arrange special coaching classes.

Creamy Layer for OBCs –

Constitutional Posts.

Group I/ Class I, Group B/Class B officers of Central & States and equivalent in Banks, PSUs, Universities, Insurance etc..

Professionals Rank of colonel and above & its equivalent.

Holding Agri lands above certain limit.

Annual income more than 6.00 lakhs

As per the supreme courts judgement only parents income be considered for deciding creamy layer.

Article 16- Equality of opportunity in matters of Public employment.

There shall be no discrimination on the basis of religion, race, caste, sex, place of birth or residence in matters relating to employment in public services.

Exceptions-

State can make provision for the reservation of appointments or posts in favour of any backward class of citizen which are not adequately represented.

State can make reservation in matter of promotion in favour of SC and ST.

Office related to religious / denominational institution

Mandal commission-

Background–

1^st backward class commission was formed in 1953 by JL Nehru under the chairmanship of Kaka Kalelkar.

This commission identified 2399 backward classes in India.

2^nd Backward commission or Mandal commission-

This comission was formed by Morarji Desai in 1979.

This commission is also known as Socially and Educationally Backward Classes Commission (SEBC).

This commission took Three parameters I.e. Social,Economic and Educational backwardness.

This commission submitted its report in 1980 and identified 3743 castes as socially and educationally backward.

It identified OBC on the basis of caste, social, economic indicators made up 52% of India’s population.

The commission’s report recommended that members of Other Backward Classes (OBC) be granted reservations to 27% of jobs under the Central government and public sector undertakings bringing the total reservation for all (SCs, STs, and OBCs) to 50 percent

V.P. Singh government(1990)-

In 1990, the then Prime Minister V P Singh announced in the Parliament that the recommendations of the Mandal Commission would be implemented and declared 27 % reservation for OBCs

Narsimha Rao government (1991)-

In 1991, the government of Narasimha Rao made two changes:

(a) In the 27 percent quota, preference is given to the poorer sections of the OBCs, i.e., reservation is based on economic criteria, and

(b) An additional 10% of jobs reserved for poorer (economically backward) sections of higher castes who are not covered by any existing reservation schemes

Indira Sawhney Case or Mandal case-

Due to reservation discussed above ,there was resistance opposition to these provisions and finally matter reached to Supreme court and Supreme gave following judgement under Indira Sawheny case-
Court rejected a 10 percent additional reservation for lower castes, it upheld the constitutional validity of a 27 percent reservation for OBCs under certain conditions .

These conditions were-

(a) There should be exclusion of Creamy layer of OBCs.

(b) Reservations should not apply in case of promotions.

(c) Except in exceptional circumstances, the total reserved quota should not exceed 50%. Every year, this rule should be followed.

(d) In the case of unfilled (backlog) vacancies, the “carry forward rule” applies. However, it should not deviate from the 50% rule.

(e)There should be a Permanent commission to look into Exclusion and inclusion of OBCs

Government response-

The Ram Nandan Committee was formed to identify the OBCs’ creamy layer.

National Commission for Backward Classes was formed in 1993 under the act of parliament.

The 77th Amendment Act was enacted in 1995 to overturn the decision regarding reservations in promotions.

In 1995, the 85th Amendment Act of 2001 provides for ‘consequential seniority’ in the case of promotion by virtue of the rule of reservation for government servants belonging to the SCs and STs.

The 81^st constitutional amendment act 2000 removed provisions related to 50% ceiling in case of backlog vacancies

Article 17 – Abolition of Untouchability-

Under this article “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.

Under this article right is available against private individual.

To implement this there are following provisions-

Protection of civil right act 1955 was introduced to punish for such acts.

Under Representation of people act 1951 any candidate preaching untouchability can be disqualified

Note -Untouchability is not defined in constitution or in 1955 Act

Article 18- Abolition of titles-

All titles national or foreign which create artificial distinctions in social status amongst the people have been abolished.

No citizen of India shall accept any title from any foreign State.

No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.

No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.

No title, not being a military or academic distinction, shall be conferred by the State.

Exceptions-

President of India can confer civil and military awards on those individuals for their services and achievements such as; Bharat Ratna, Padma Vibhushan, Veer Chakra etc., but these cannot be used on suffix or prefix

Right to Freedom (Article 19 to 22)-

Article 19-Protection of Six rights-

Originally there were 7 rights but the right to property was removed by 44^th constitutional amendment act 1978.

These rights are not applicable to aliens, legal corporation.

They are not available against private individuals.

State can impose reasonable restrictions.

All citizens shall have the right—

(a) To freedom of speech and expression.

(b) To assemble peaceably and without arms.

(d) To move freely throughout the territory of India.

(e) To reside and settle in any part of the territory of India.

(f) to practice any profession or to carry on any occupation, trade or business.

(a) Freedom of speech and expression-

It includes-

Right to propagate one’s views as well as views of others.

Right against Bundh.

Freedom of Silence.

Right to demonstration/picketing but not right to strike.

Reasonable restrictions on the basis of –

The sovereignty and integrity of India.

The security of the State.

Friendly relations with foreign States, Public order, decency or morality, or

In relation to contempt of court, defamation or

Incitement to an offence.

(b)Assemble peaceably and without arms-

It includes peaceful assembly of individuals without arms.

Reasonable restrictions on the basis of –

Sovereignty & Integrity of India.

Public order.

(c) To form associations,unions and Co-operative societies

Right to obtain recognition of the association is not a fundamental right.

Right to form cooperative societies was added through 97^th constitutional amendment.

It also covers not to form/join association /union.

Reasonable restrictions on the basis of –

Sovereignty & Integrity of India Public Order Morality.

(d) To move freely throughout the territory of India

It only cover freedom to move freely inside India not outside India.

Restriction-

State can impose restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe

(e) To reside and settle in any part of the territory of India

Restriction-

State can impose restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

(f)Right to practice any profession or to carry on any occupation, trade or business-

It doesn’t include the right to carry on a profession that is immoral trafficking in women or children or dangerous harmful drugs or explosives, etc.

Restriction-

State can impose restrictions in the interests of the general public or for the protection of the interests of any Scheduled Tribe.

Article 20-Protection in Respect of Conviction for Offences-

1.No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence.

It is known as ex-post-facto law.

It is applicable only in case of criminal convictions not in case of civil liabilty etc.

No person shall be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence

2.No person shall be prosecuted and punished for the same offence more than once it is known as no double Jeopardy.

This provision is only available in case of judicial decisions or matters but does not apply to departmental and administrative proceedings.

3.No person accused of any offence shall be compelled to be a witness against himself means no self-incrimination.

Article 21-Protection of Life and Personal Liberty-

It states that no person shall be deprived of his life or personal liberty except according to procedure established by law.

A.K Gopalan vs. the State of Madras, 1951-

The Supreme court has taken a narrow interpretation of Article 21 in this case.

Under this judgement supreme court held that protection under this right is only available against executive action but not against the legislative action of the state.

State can take away rights under this article through legislative action.

Maneka Gandhi vs. UOI, 1978-

In this case, the SC overruled its judgment of the Gopalan Case by taking a wider interpretation of Article 21.

It ruled that the right to life and personal liberty of a person can be deprived by law on the condition that the procedure prescribed by that law is reasonable, fair, and just.

Further, it clarified that the right to life does not merely mean animal existence.

It held that all those aspects of life which go to make a man’s life meaningful, complete, and worth living will be included in this.

Various rights included under this are-

Right to live with human dignity.

Right to the decent environment including pollution-free water and air and protection against hazardous industries.

Right to livelihood.

Right to privacy.

Right to shelter.

Right to health.

Right to free education up to 14 years of age.

Right to free legal aid.

Right against solitary confinement.

Right to a speedy trial.

Right against handcuffing etc.

Article 21A- Right to education

This provision was added by the 86th Constitutional Amendment Act of 2002.

This article states that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine

Article 22- Protection against arrest and detention in certain cases.

This article deals with two types of Detention-

1.Punitive-

It includes punishment after trial and conviction.

Under Article 22(1) and (2) there are following provisions related to it-

No person who is arrested shall be detained in custody .

Without being informed of the grounds for such arrest.

Nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate.

No such person shall be detained in custody beyond the said period without the authority of a magistrate.

These provisions related to Punitive detentions does not apply to-

To any person who for the time being is an enemy alien.

To any person who is arrested or detained under any law providing for preventive detention.

Arrest on failure to pay the income tax.

2.Preventive detention-

It refers to detention without trial as a precautionary measure

Provisions –

No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-

An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months.

The grounds of detention should be communicated as soon as possible to the detainee.

Parliament may by law increase the period beyond 3 months without obtaining the approval of advisory board

Note– 44th Amendment Act, 1978 have reduced detention period to 2 months but it is not implemented yet

Article 23 and 24 -Right Against Exploitation –

Article 23-Prohibition of traffic in human beings and forced labour.

Under this Article traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

State can ask any individual to perform compulsory service for public purposes

Traffic in Human beings include-

Selling and buying of men, women and children ,Prostitution,Devadasis and Slaveryetc.

Article 24-Prohibition of employment of children in factories, etc.

Under this article no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

The Child Labour (Prohibition and Regulation) Act, 1986 –

It deals with protection of child and child labour.

Although there was no provision to prohibit the employment of children in harmless or innocent work but amendment to this act in 2016 completely prohibited employment or of children below 14 years of age in all occupations and processes.

Article 25 to 28 -Right to Freedom of Religion

Article 25-Freedom of conscience and free profession, practice and propagation of religion

Conscience:

A person may or may not choose to follow any religion.

Right to Profess:

It refers to that one can declare his religion or religious ideas freely and openly.

Right to Practice:

It refers to performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.

Right to Propagate:

Persuading people to convert from one religion to another but it does not include forceful conversion.

State can put restriction on these rights on the grounds of-

Public order.

Morality and health.

State can make law to-

a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Note 1 –

The word Hindus include the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Note 2-

The wearing and carrying of kirpans is deemed to be included in the profession of the Sikh religion

Article 26- Freedom to Manage Religious Affairs

Every religious denomination or any section thereofhave the right—

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(d) to administer such property in accordance with law;

State can impose restriction on these rights on the ground of –

Public order.

Morality and health.

Article 27- Freedom as to payment of taxes for promotion of any particular religion

It states that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

It is to be noted that It prohibits only levy of a tax and not a fee.

Article 28-Freedom from Attending Religious Instruction-

It provide for following cases in which religious instructions in the educational institutes can be permitted or denied-

(1)No religious instruction shall be provided in any educational institution wholly maintained out of State funds.

(2)Religious instructions can be imparted in the institute which is administered by the State but has been established under any endowment or trust.

(3)If any educational institution recognized by the State or receiving aid out of State funds,in that institute religious instructions can be imparted only after getting the consent of such person or, if such person is a minor, his guardian has given his consent thereto.

Cultural and Educational Rights-Article 29 and 30-

Article 29- Protection of interests of minorities-

This article provides for Two important rights-

(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own have the right to conserve the same.

(2) No citizen is to be denied admission into any educational institution Maintained by the State aid out of State funds on grounds only of religion, race, caste, language or any of them.

Note–

One can see that in 1^st provision there is use of word “Any section of the citizens” which means that it is applicable to all citizens ,which indicates that in not only cover minority but also majority too.

Article-30- Right of minorities to establish and administer educational institutions-

It provides following rights to the minorities-

All minorities, whether based on religion or language, have the right to establish and administer educational institutions of their choice.

The compensation amount fixed by the State for the compulsory acquisition of any property of a minority educational institution shall not restrict or abrogate the right guaranteed to them(This provision was added by the 44th Amendment Act, 1978).

The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

Under this section who are included under minorities ?

Minorities under this section includes Religious minorities and Linguistic minorities

Note –

The scope of Article 29 is wider than Article 30 because Article 30 includes both minority and majority while Article 30 is only restricted to the Religious and Linguistic minorities

Article 31 and Article 31 A to C-

Article 31 -Compulsory acquisition of property

This article was removed from fundamental rights by 44^th constitutional amendment act 1978 and was included under Article 300A in Part XII of the Constitution.

Article 31A-Saving of laws providing for acquisition of estates, etc.

This Article was inserted by 1^st constitutional amendment act 1951.

It is an Exception to Article 14 or Article 19 of the constitution and law made for provisions under this article can not be challenged on the ground that they are in contravention to the Article 14 or 19 and it includes-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence

Note –

Assent of President is compulsory for for laws related to these provisos.

It also provides the guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

Article 31B-Validation of certain Acts and Regulations-

This article was also inserted by 1^st constitutional amendment act of 1951.

It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights.

It is an Exception to Article 14 or Article 19 of the constitution and law made for provisions under this article can not be challenged on the ground that they are in contravention to the Article 14 or 19.

I.R. Coelho case (2007)-

Under this case Supreme court held that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.

Article 31C-Saving of laws giving effect to certain directive principles-

This article was added by 25^th constitutional amendment act 1971.

This article states that-

No law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV(Directive principles of State policy) shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19

It means that –

State can make laws for implementation of Directive principles of state policy even if they are in contravention to Article 14 or 19.

There was one more clause under this article which states that-

No law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.

Bur this provision was declared Invalid by Supreme court in Kesavananda Bharati vs. The State of Kerala, (1973) case

Article 32 -Right to Constitutional Remedies-

This article was called as ‘Soul and Heart’ of constitution by Dr. Ambedkar.

This article provides that right to move Supreme court for enforcement of fundamental rights is guaranteed.

Article 32 of the Indian Constitution empowers the Supreme Court to issue writs for safeguarding the Fundamental Rights.

Due to these reasons Supreme court is considered asProtector & Guarantor of Fundamental Rights.

Parallely there is similar for High court under Article 226 which empowers the High court to issue Writs for enforement of Fundamental right.

But there is some difference between Article 32 and 226-

Article 32 of the Indian Constitution falls under Part III; hence it is a Fundamental Right, whereas Article 226 of the Indian Constitution is not a Fundamental Right.

Supreme court can issue Writs only in case of violation of Fundamental rights but High court can issue writs for Fundamental rights and also for other purpose as well ,which means that high court have wider scope under Article 226 as comparison to Supreme court under Article 32.

Note-

Parliament has a power to confer rights to issue writs to some other courts also.

Writs-

A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way.

Different types of Writs-

There are total 5 types of writs that are issued under Article 32 and 226

1.Habeas Corpus

It means that to have the body.

It is issued by court to bring.

By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court.

The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.

Habeas Corpus can not be issued in the following cases:

When detention is lawful.

When the proceeding is for contempt of a legislature or a court.

Detention is by a competent .

Detention is outside the jurisdiction of the court.

Can Writ of Habeas Corpus be issued against state ?

Yes,In Smt. Jayamma vs the State of Karnataka, the court held that the Writ of Habeas corpus could be used against State as well as the individual.

2.Writ of Mandamus-

The meaning of mandamus is ‘we command’.

This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work.

Following bodies are covered under Writ of Mandamus-

Courts and Tribunals.

Administrative authority.

Corporation or a person who is bound to perform some duty fixed by law.

Semi-governmental bodies.

Mandamus can not be issued in the following cases-

When there is no legal responsibilty to perform any duty.

To enforce a contractual obligation.

Against the Chief Justice of a High Court acting in a judicial capacity, President and State governors.

To enforce departmental instruction that does not possess statutory force.

When the duty has already been fulfilled by the authority against which such a Writ is sought to be issued.

3.Writ of Certiorari

This writ is issued by a superior court to an inferior court or tribunal, board, administrative authorities and high court.

Court directs the lower court-

Either to transfer a case pending with them to itself or quash their order in a case.

It is issued on the grounds of-

An excess of jurisdiction or lack of jurisdiction or error of law

It can not be issued against-

Individual,company and a private authority.

4.Writ of Prohibition-

Prohibition means to forbid.

This writ is available only against judicial and quasi-judicial authorities.

Under this Writ Superior court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction.

Difference between Prohibition and Certiorari-

It is a preventive measure means the superior court issues the writ before the final order is passed by the inferior court while in Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order.

5.Writ of Quo Warranto-

Quo warranto means by what authority.

It is issued by the courts against a person an assumes a public office on which he has no right.

The Public office means office which is created by the Constitution or by any other statute.

The Writ of Quo warranto cannot lie against the following:

Private office.

Ministerial office.

Article 33-Power of Parliament to modify the rights conferred by this Part in their application to armed forces, etc.

Parliament(not state legislature) can restrict or abrogate fundamental rights of-

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or

(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred above.

The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.

Note –

The ‘members of the armed forces’ also covers non-combatant employees of the armed forces such as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers and tailors.

Article 34- Restriction on rights conferred by this Part while martial law is in force in any area

Under this article the parliament is empowered to restrict the fundamental rights of individuals while martial law is in force in any area within the territory of India.

It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force.

The concept of Martial law has been borrowed from British.

Martial law	National Emergency
There is no detailed provision about martial law in our constitution like grounds of imposition,definition of martial law etc.	There is detailed provision in our constitution regarding national emergency
It affects only Fundamental rights	It affects FR, centre-state relations etc
It suspends the government and ordinary law courts	It continues their existence
It is Imposed to restore law and order	It is imposed on grounds like- War, external aggression or armed rebellion
Imposed in some specific areas of the country	It is imposed in Some or whole of the country

Article 35- Legislation to give effect to the provisions related to fundamental rights-

This article empower only the Parliament to make laws, to give effect to certain specified fundamental rights.

For this purpose parliament can make laws even on those subjects that are under state list.

Significance of Fundamental Rights-

They helps in empowerment of vulnerable sections of our society by providing them protection.

They provides for strengthening political democracy in the country.

They act as guardian of individual liberty.

They Protect the interests of minorities and weaker sections of the society.

Strengthen the secular fabric of the Indian state.

Acts as a check to the absolute authority of the government.

They facilitate the establishment of rule of law.

Criticisms of fundamental rights-

Some of these rights place excessive limitations.

There is no holistic and detailed rights for socio economic development.

In some fundamental rights there is no clarity for example -Martial law is not defined under Article 34.

There is no permanency of fundamental rights.

Some of the important fundamental rights that other constitutions have,are not included in our constitution.